Rivera v. Stanford

• Decision Date: 08 May 2019
• Docket Number: 2018–00017, (Index No. 50638/17)
• Citation: 172 A.D.3d 872,100 N.Y.S.3d 72
• Parties: In the Matter of Richard RIVERA, Appellant, v. Tina M. STANFORD, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 872

100 N.Y.S.3d 72

In the Matter of Richard RIVERA, Appellant,

v.Tina M. STANFORD, etc., Respondent.

2018–00017

(Index No. 50638/17)

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 15, 2019

May 8, 2019

Janet E. Sabel, New York, NY, and Orrick, Herrington & Sutcliffe LLP, New York, N.Y. (Alex V. Chachkes and Christopher J. Cariello of counsel), for appellant (one brief filed).

Letitia James, Attorney General, New York, N.Y. (Steven C. Wu and Caroline A. Olsen of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York State Board of Parole dated September 14, 2016, which, after an interview held pursuant to Executive Law § 259–i(2)(a)(i), denied the petitioner's application to be released on parole, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Denise M. Watson, J.), dated November 27, 2017. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, and the matter is remitted to the New York State Board of Parole for a de novo interview pursuant to Executive Law § 259–i(2)(a)(i), before a different panel, and a new determination with all convenient speed.

In 1981, the petitioner was convicted of robbery in the first degree and criminal use of a firearm in the first degree, stemming from a robbery at a bar in Queens. Subsequently, in 1982, the petitioner was convicted of two counts of murder in the second degree, four counts of attempted robbery in the first degree, criminal possession of a weapon in the second degree, and criminal use of a firearm in the second degree arising from the shooting of an off-duty police officer during an alleged attempted robbery at a different bar in Queens two weeks after the first robbery occurred. The petitioner was 16 years old when he committed the crimes underlying both the 1981 and 1982 convictions.

The petitioner was sentenced to a term of imprisonment of 5 to 15 years for the 1981 convictions. With respect to the 1982 convictions, the petitioner was sentenced to a term of imprisonment of 25 years to life. The sentences imposed for the 1982 convictions were ordered to run consecutively to the sentences for the 1981 convictions.

On September 14, 2016, the New York State Board of Parole (hereinafter the Parole Board) denied the petitioner's fourth application for parole release. At the time, the petitioner was 52 years old and had spent 36 years in prison. Thereafter, the Parole Board's Appeals Unit affirmed the September 2016 determination. The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to review the Parole Board's September 2016 determination denying his application for parole release. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

At the outset, the Parole Board contends that this appeal relating to the denial of the petitioner's 2016 application for parole has been rendered moot, since the petitioner submitted a subsequent application for parole release in 2018 and appeared for a parole interview in September 2018. At that time, the defendant's subsequent application for parole release was denied. We take judicial notice of the fact that, in a decision dated April 9, 2019, the Parole Board's Appeals Unit vacated the Parole Board's denial of the petitioner's 2018 application and remanded the matter for a de novo interview. Consequently, the petitioner's challenge to the determination denying his 2016 parole application is not academic.

Judicial review of a determination of the Parole Board is narrowly circumscribed (see Executive Law § 259–i[5] ; Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21, 29, 298 N.Y.S.2d 704, 246 N.E.2d 512 ; Matter of Marszalek v. Stanford, 152 A.D.3d 773, 773, 59 N.Y.S.3d 432 ). Nonetheless, if an application for parole is denied, the Executive Law requires that the reason for such denial be given "in detail and not in conclusory terms" ( Executive Law § 259–i[2][a][i] ).

Here, the petitioner demonstrated his entitlement to a judgment setting aside the Parole Board's September 2016 determination.

The Parole Board's finding that the petitioner's release was not compatible with the welfare of society based upon his disciplinary record while imprisoned is without support in the record (see Matter of Coleman v. New York State Dept. of Corr. & Community Supervision, 157 A.D.3d 672, 673, 69 N.Y.S.3d 652 ; cf. Matter of Marino v. Travis, 289 A.D.2d 493, 493, 735 N.Y.S.2d 422 ). Further, the Parole Board's terse and conclusory decision did not explain the reason for the denial in detail as required by the Executive Law (see Executive Law § 259–i[2][a] ).

The Parole Board determination stated that "[o]f significant concern is [the petitioner's] poor behavior during this term." Yet, from the time of the petitioner's 2014 appearance before the Parole Board until the time of his 2016 appearance before the Parole Board, the petitioner had no disciplinary infractions. Moreover, the petitioner's only disciplinary infractions since 2011 related to failing to report an assault upon him; having excess stamps, cigarettes, and prescribed medication in his cell; and possessing contact information of a prison employee, who was his fiance´ at the time of his 2016 application. While the Parole Board noted that the petitioner had incurred more than 30 disciplinary violations while imprisoned since the 1980's, the Parole Board did not discuss the history of these violations or explain how these violations, many of which were decades old, had a bearing upon its determination that the petitioner's request for release was not compatible with the welfare of society.

Aside from discussing the petitioner's disciplinary history, the Parole Board focused only on the petitioner's conduct during the commission of the subject crimes (see Matter of Ramirez v. Evans, 118 A.D.3d 707, 707, 987 N.Y.S.2d 415 ). Consequently, the Parole Board's determination to deny parole release to the petitioner appears to have been solely based on the seriousness of the crimes he committed. We find such analysis, or lack thereof, to be incompatible with the Parole Board's duty.

"[A] juvenile homicide offender ... has a substantive constitutional right not to be punished with life imprisonment for a crime ‘reflect[ing] transient immaturity’ " ( Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 A.D.3d 34, 38, 30 N.Y.S.3d 397, quoting Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct. 718, 735, 193 L.Ed.2d 599 ). "[T]he ‘foundational principle’ of the Eighth Amendment jurisprudence regarding punishment for juveniles is ‘that [the] imposition of a [s]tate's most severe penalties on juvenile offenders cannot proceed as though they were not children’ " ( Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 A.D.3d at 38, 30 N.Y.S.3d 397, quoting Miller v. Alabama, 567 U.S. 460, 474, 132 S.Ct. 2455, 183 L.Ed.2d 407 ). "A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court" ( Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 A.D.3d at 38, 30 N.Y.S.3d 397 ). Consequently, "[f]or those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the [Parole] Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue" ( id. at 39, 30 N.Y.S.3d 397 ).

Here, in considering the petitioner's application for parole, the Parole Board was required to consider the fact that the petitioner was 16...